The Corner

Voting by Noncitizens in Arizona

The U.S. Supreme Court today struck down part of an Arizona state law intended to keep noncitizens from voting and thereby disenfranchising legitimate voters. Within moments of the decision, the Lawyers’ Committee on Civil Rights, the ACLU, the League of Women Voters, and MALDEF held a press call to crow about their victory in Arizona v. Intertribal Council of Arizona.

Their victory dance may be short-lived, however. The ruling was very narrowly drawn, and the Court laid out a roadmap by which Arizona can protect the integrity of its elections after all.

The first thing to keep in mind is that this was not a decision about voter ID — despite what initial reports implied.  Arizona’s voter-ID law remains in place. In fact, it wasn’t being contested before the Supreme Court. The plaintiffs lost their claim against the voter-ID law in the lower courts and didn’t bother to include that claim in their appeal.

At issue in Intertribal Council was another provision of Arizona’s voter-approved 2004 referendum that requires anyone registering to vote to provide proof of citizenship. That proof might be a passport, birth certificate, naturalization papers, tribal ID, or other documents accepted by the federal government under immigration laws. 

Today’s majority (7–2) opinion, written by Justice Antonin Scalia, held that the federal National Voter Registration Act of 1993 preempts Arizona’s requirement that applicants submit proof of citizenship when registering. The NVRA specifies that states must “accept and use” the federal mail-in voter registration form. The majority ruled that Arizona’s proof-of-citizenship requirement conflicts with that provision because the “Federal Form guarantees that a simple means of registering to vote in federal elections will be available.” Arizona, the majority held, cannot require information beyond that “required by the form itself.”

However, Scalia’s opinion had some important caveats. He made it clear that the NVRA preemption applies only to the federal voter-registration form, not Arizona’s state-registration form. According to the majority, “state-developed forms may require information the Federal Form does not.” So anyone registering to vote in Arizona using the state’s voter-registration form is still going to have to provide proof of citizenship. The Court also carefully noted that the NVRA does not “preclude States from ‘deny[ing] registration based on information in their possession establishing the applicant’s ineligibility.’” 

The final three pages of Scalia’s opinion lay out a roadmap whereby Arizona can get around this ruling. In 2005, Arizona asked the U.S. Election Assistance Commission, the federal agency responsible for the federal voter-registration form, to “include the evidence-of-citizenship requirement among the state-specific instructions on the Federal Form” for any residents of Arizona. The EAC’s four commissioners split 2 to 2, so the agency took no action. “We are aware of nothing that prevents Arizona from renewing its request,” Scalia suggests.

If the EAC refuses the request or “its inaction persists,” Scalia writes, then Arizona can sue the EAC and establish in court that “a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefor under a nondiscretionary duty to include Arizona’s concrete evidence requirement on the Federal Form.” 

The Justice went so far as to say that Arizona could claim the EAC’s refusal is “arbitrary” since the agency “has accepted a similar instruction requested by Louisiana.” In fact, footnote 11 helpfully instructs that the “EAC recently approved a state-specific instruction for Louisiana requiring applicants who lack a Louisiana driver’s license, ID card, or Social Security number to attach additional documentation” to the federal voter-registration form.

Finally, notice what is missing in this opinion: any talk of the proof requirement’s being “discriminatory.” This was a claim about NVRA preemption — period! There was no claim that the requirement was racially or ethnically discriminatory because (1) that claim got thrown out in the lower court and (2) the elections held while the requirement was in place showed it had no discriminatory effect.

Voting by noncitizens is a real problem, as John Fund and I explained in “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk.” Indeed, in the lower-court hearing, Arizona had no difficulty producing evidence of illegal voting by noncitizens. It’s  a problem that cannot be solved by a mere honor system that relies on voter-registration applicants to honestly answer whether they are citizens or not — there is too much evidence that this does not deter noncitizens from registering and voting.

— Hans von Spakovsky is a senior legal fellow in the Heritage Foundation’s Edwin Meese Center for Legal and Judicial Studies.

Hans A. von Spakovsky — Heritage Foundation – As a Senior Legal Fellow and Manager of the Election Law Reform Initiative in the Center for Legal and Judicial Studies, Hans von Spakovsky concentrates on voting, ...

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